SHINE v. CHILDS

The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District

OPINION & ORDER

Plaintiff Thomas Shine sues David M. Childs and Skidmore,
Owings & Merrill, LLP (SOM) for copyright infringement under the
United States Copyright Act, 17 U.S.C. § 101  § 1332 (2000).
Shine alleges that he created designs for an original skyscraper
which Childs saw and later copied in the first design plan for
the Freedom Tower at the World Trade Center (WTC) site.
Defendants move to dismiss the Complaint, or alternatively for
summary judgment. For the reasons explained below, defendants'
motion for summary judgment is granted in part and denied in
part.

I.

The facts viewed in the light most favorable to the plaintiff,
see Higgins v. Metro-North R.R. Co., 318 F.3d 422, 424 (2d
Cir. 2003), are as follows. In fall 1999, Shine was a student in
the Masters of Architecture Program at the Yale School of
Architecture. As part of the required curriculum in his program,
he took a studio class on skyscrapers taught by renowned
architect Cesar Pelli. (Compl. ¶ 8) The object of this studio was
to create a design proposal for a monumental skyscraper that
would be built on West 32nd Street in Manhattan and used by the
media during the 2012 Olympic Games; the building was to be
adjacent to the proposed West Side stadium. See id.; Shine
Decl. ¶ 5.

During the first half of October 1999, Shine developed a preliminary model for his design, which he refers to as "Shine
'99" for the purposes of this litigation.*fn1 Plaintiff
describes Shine '99 as a tower that tapers as it rises, with "two
straight, parallel, roughly triangular sides, connected by two
twisting facades, resulting in a tower whose top [is] in the
shape of a parallelogram." (Compl. ¶ 9) See id. Ex. A, pp.
1-4 (photographs of Shine '99); see also App. One.

By the end of the fall 1999 semester, Shine had developed a
more sophisticated model of his design, entitled "Olympic Tower."
Shine describes this structure as "a twisting tower with a
symmetrical diagonal column grid, expressed on the exterior of
the building, that follows the twisting surface created by the
floor plates' geometry." (Id. ¶ 10) According to Shine, the
column grid he designed gives rise to "an elongated diamond
pattern, supporting a textured curtain wall with diamonds
interlocking and protruding to create a crenelated appearance."
(Id.) See id. Ex. B, pp. 1-9 (photographs of various models
and sketches of Olympic Tower and its design elements); see
also App. Two.

On or about December 9, 1999, Shine presented his designs for
Olympic Tower to a jury of experts invited by the Yale School of
Architecture to evaluate and critique its students' work. During
a 30-minute presentation to the panel, Shine explained his tower's structural design, and displayed
different structural and design models (including Shine '99),
renderings, floor plans, elevations, sections, a site plan, and a
photomontage giving a visual impression of the tower's exterior.
(Shine Decl. ¶¶ 7-9) Defendant Childs was on the panel, and he
praised Olympic Tower during the presentation, as did the other
luminaries*fn2 evaluating Shine's work. When the review was
completed, Shine was applauded by the jury and other visitors,
which, according to Shine, is "highly unusual" at a student's
final review. (Shine Decl. ¶ 10) After the presentation, Childs
approached Shine, complimented Shine's color pencil rendering of
Olympic Tower, and invited Shine to visit after his graduation.
See Compl. ¶ 11; Shine Decl. ¶ 10.

Childs' favorable reaction to Olympic Tower was also documented
in Retrospecta, an annual alumni magazine*fn3 published by
the Yale School of Architecture featuring selected works by the
school's current students. The 1999-2000 edition of Retrospecta
featured a large composite photographic rendering of Olympic
Tower set against an imaginary New York sunset, in addition to
smaller inset photographs of two of Shine's models of the tower. Favorable comments from the panel members were printed
next to the photographic rendering, including the following
compliment from Childs: "It is a very beautiful shape. You took
the skin and developed it around the form  great!" (Compl. Ex.
C) Shine does not allege that he had any contact with Childs
after the December 1999 panel evaluation. However, he does claim
that Childs' design for the Freedom Tower, unveiled four years
later, infringed Shine '99 and Olympic Tower.

Childs did not begin work on the Freedom Tower until summer
2003. In order to choose the best possible design for the rebuilt
WTC, the Lower Manhattan Development Corporation and the Port
Authority of New York and New Jersey held an architectural
competition in 2002 and 2003, in search of a master WTC site
plan. In February 2003, Studio Daniel Libeskind's plan entitled
"Memory Foundations" was selected as the winning design. See
Suzanne Stephens, Imagining Ground Zero: Official and Unofficial
Proposals for the World Trade Center Site 11, 28-29 (2004). In
summer 2003, WTC developer Larry Silverstein asked Childs, who is
a Consulting Design Partner at SOM, to begin working as design
architect and project manager for the tallest building at the
proposed new WTC site as conceptualized by Libeskind  the
building that later would be called the Freedom Tower. Id. at
29. Libeskind was to serve as collaborating architect during the
initial concept and schematic design phases. Id. at 32. In
spite of what was described as a "difficult marriage" between
Childs and Libeskind, see id. at 29, a design for the Freedom Tower was completed within six months, and was presented to the
public at a press conference at Federal Hall in lower Manhattan
on December 19, 2003. See id. at 32; Compl. ¶ 17; Durschinger
Aff. ¶ 34. At this presentation, SOM and Childs displayed six
large computer-generated images of the Freedom Tower, see
Stephens at 34-35; two scale models of the Tower, see
Durschinger Aff. Exs. N, O, and P; and a computer slide show
detailing the Tower's design principles, see Durschinger Aff.
Ex. Q. They also distributed a press packet containing six images
of the proposed Tower, see id. Ex. R; see also App. Three.

As described by Shine, this version of the Freedom Tower
"tapers as it rises and has two straight, parallel, roughly
triangular facades on opposite sides, with two twisting facades
joining them." (Compl. ¶ 18) Shine alleges that this design is
substantially similar to the form and shape of Shine '99, and
that it incorporates a structural grid identical to the grid in
Olympic Tower, as well as a facade design that is "strikingly
similar" to the one in Olympic Tower. (Id.) Apparently, others
at the Yale School of Architecture noticed the similarity between
the Freedom Tower and Shine's design: According to plaintiff's
expert, Yale Professor James Axley, several days after Childs
unveiled the design for the Freedom Tower, one of Shine's
original models for Olympic Tower "was retrieved from archival
storage and placed on the desk of the Dean of the School of
Architecture." (Axley Decl. ¶ 7)

Shine registered Olympic Tower as an architectural work with the U.S. Copyright Office on March 30, 2004 (Compl. Ex. E),
and did the same for Shine '99 on June 24, 2004 (id. Ex. D). He
filed the Complaint in this action on November 8, 2004, claiming
that defendants copied his designs without his permission or
authorization, and stating that defendants distributed and
claimed credit for his designs "willfully and with conscious
disregard" for his rights in his copyrighted works. (Id. ¶ 22)

Shine requests an injunction to prevent further infringement by
defendants, as well as actual damages and defendants' profits
realized by their infringement. (Id. ¶¶ 27-28) Defendants move
to dismiss the Complaint, or alternatively for summary judgment,
claiming that Shine's works are not original and not worthy of
protection, and further arguing that there is no substantial
similarity between either work and the Freedom Tower.

It should be noted that in June 2005, after law enforcement
authorities, among others, objected to the Freedom Tower's
original design,*fn4 Childs, SOM, and Libeskind unveiled a
substantially redesigned version of the Tower. The alleged
infringing design apparently has been scrapped and is unlikely to
be constructed. The new version has, at least to this court's
untrained eye, little similarity to either of Shine's copyrighted
works, and the court assumes that Shine makes no claim that it
infringes his works. Because the alleged infringing design may never be constructed, Shine's actual damages in this action may
be reduced, and he may be unable to show the need for an
injunction. But because defendants' original design for the
Freedom Tower remains in the public domain, Shine's infringement
claim stands.

Defendants have moved under Fed.R.Civ.P. 12(b)(6) to dismiss
the Complaint, or alternatively, for summary judgment under
Fed.R.Civ.P. 56. Because plaintiff has treated the motion as one
for summary judgment, see Pl. Br. at 11, and because both
parties have submitted materials outside the Complaint that the
court has found helpful, the court will consider those materials,
and apply summary judgment standards. In assessing whether a
genuine issue of material fact remains to be tried, the court
will view the ...

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